University at Buffalo School of Law
This article analyzes and recommends a Congressional response to the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc.. The article places the Gross decision’s choice of a causation standard for disparate treatment causes of action in historical context by comparing that choice with that made by Congress for Title VII in § 107 of the Civil Rights Act of 1991, and criticizes the Court’s activist refusal to follow its own Title VII precedent. Stressing the lower courts’ misinterpretation of § 107, both before and after the Court’s own interpretation of this section in 2003 in Desert Palace, Inc. v. Costa, the article does not recommend that Congress merely use the 1991 Act as a model for amending the ADEA. The article instead explains how Congress could more effectively formulate a contributing or motivating cause standard not only for anti-discrimination law mandates like those in the ADEA and Title VII, but also for other federal employment law prohibitions. The article also explains why the contributing cause standard is consistent with the consideration of the pretext proof contemplated within the McDonnell Douglas-Burdine framework for disparate treatment causes of action under federal anti-discrimination law.
Michael C. Harper,
The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991
Buffalo Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/515